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Abbas Ali Shikdar v. Karim Baksh Shikdar
Factual and Procedural Background
The Plaintiffs filed suit for recovery of certain land that formerly belonged to one Asu Sikdar. The Plaintiffs claimed that Asu Sikdar had given one quarter of the property to his wife, the 4th Plaintiff, in lieu of dower, and the remaining three-quarters to the first three Plaintiffs by a hiba bil ewaz (gift with consideration) in exchange for a copy of the Koran. The lower courts decreed the suit in favor of the Plaintiffs, and the Defendants have appealed that decision.
Legal Issues Presented
- Whether the transfer described as a hiba bil ewaz in favor of the first three Plaintiffs constituted a valid hiba bil ewaz or was merely a simple gift requiring delivery of possession.
- Whether the verbal gift to the 4th Plaintiff was valid, considering it might be a gift, sale, or exchange, and the applicability of the Transfer of Property Act to such a transaction.
- Whether the verbal transfer to the 4th Plaintiff required delivery of possession or registration under section 54 of the Transfer of Property Act.
- The applicability of section 129 of the Transfer of Property Act and relevant Mahomedan law principles to the transaction in question.
Arguments of the Parties
Appellant's Arguments
- The so-called hiba bil ewaz in favor of the first three Plaintiffs was not a hiba bil ewaz but a simple gift, which is ineffective without delivery of possession.
- The verbal gift to the 4th Plaintiff was invalid, either because as a gift it lacked delivery of possession, or as a sale or exchange it was invalid under the Transfer of Property Act.
Respondents' Arguments
- The consideration of a copy of the Koran is valid for the transfer described as hiba bil ewaz.
- The verbal gift to the 4th Plaintiff was a valid gift under Mahomedan law and did not require delivery of possession or registration as per section 129 of the Transfer of Property Act and relevant case law.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Macnaghten's Mahomedan Law, p. 217 | Classification of hiba bil ewaz as a sale under Mahomedan law | Supported the court's view that the transaction was a sale requiring compliance with Transfer of Property Act |
| Suba Bibi v. Balgobind Das | Recognition that hiba bil ewaz is effectively a sale for consideration | Reinforced the court's conclusion that the transaction must comply with section 54 of the Transfer of Property Act |
| Mahomed Esuph Ravutan v. Pattamsa Ammal | Held that transfer of seizin is not necessary in certain gift transactions under Mahomedan law | The court noted this decision but distinguished it due to lack of consideration of the Transfer of Property Act applicability |
| Khajooroonissa v. Rowshan Jehan | Requirement of bona fide intention to divest property and confer it on donee in deeds of gift for consideration | Used to clarify that even under Mahomedan law a gift for consideration requires intention to transfer ownership |
Court's Reasoning and Analysis
The court examined whether the so-called hiba bil ewaz was a valid gift or a sale requiring delivery of possession or registration. It found no authority to reject the validity of a copy of the Koran as consideration, thus rejecting the Appellant's contention that the transfer was ineffective for lack of delivery.
Regarding the verbal gift to the 4th Plaintiff, the court analyzed the nature of the transaction and concluded it was effectively a sale (hiba bil ewaz or bye mokasa under Mahomedan law), which must comply with section 54 of the Transfer of Property Act. This means the transaction required either registration or delivery of possession since the property value was under Rs. 100.
The court distinguished the lower court’s reliance on section 129 of the Transfer of Property Act and certain precedents, noting that the relevant chapter of the Act applies only to gifts without consideration, whereas the present transaction involved consideration.
Since the lower court did not fully consider whether possession was delivered to the 4th Plaintiff, the case was remanded for a trial to determine this critical fact. The outcome of this factual inquiry would decide whether the appeal succeeds with respect to the quarter of the property claimed by the 4th Plaintiff.
Holding and Implications
The appeal is partially allowed and the case is remanded for trial on the issue of delivery of possession to the 4th Plaintiff.
If possession was delivered, the Plaintiffs are entitled to a decree and the appeal will fail. If possession was not delivered, the appeal will succeed with respect to one quarter of the property.
The Respondents will be entitled to three-quarters of the costs of the appeal, while costs related to the disputed quarter will await the outcome of the remand.
This decision does not establish new precedent but clarifies the application of Mahomedan law and the Transfer of Property Act to transactions described as hiba bil ewaz, emphasizing the necessity of possession or registration in sales of immovable property under Rs. 100 in value.
In this suit the Plaintiffs sued for recovery of certain land, which formerly belonged to one Asu Sikdar, on the ground that Asu Sikdar had given one quarter of the property to his wife, the 4th Plaintiff, in lieu of dower, and the remaining three-quarters to the first three Plaintiffs by a hiba bil ewaz in consideration of a copy of the Koran. The Courts below have decreed the suit and the Defendants appeal.
The first point taken is that the so-called hiba bil ewaz in favour of the first three Plaintiffs is not a hiba bil ewaz at all, but a simple hiba or gift, and therefore was ineffectual in the absence of any delivery of possession. We have however been shown no authority for holding that a copy of the Koran is not a valid consideration for a transfer of this nature and we think that the Appellant's contention with reference to this document cannot be supported.
The next point taken is that the verbal gift to the 4th Plaintiff is invalid. It is argued that it is either a gift or a sale or exchange. If it is a gift, it is invalid by reason of the fact that possession was not delivered. If it is a sale or exchange, it is invalid under the provisions of the Transfer of Property Act.
It appears to us that the so-called gift was a sale. According to the plaint it was made in consideration of a dower-debt of Rs. 49, and “on account of right of inheritance.” Such a transaction is usually described as a hiba bil ewaz, with respect to which it is said in Baillie's Digest (p. 122, 2nd Ed.) that the transaction which goes by the name of hiba bil ewaz in India is not a proper hiba bil ewaz at all but a sale. A gift in lieu of dower is described as a bye mokasa which is also a sale. Under the Mahomedan Law these transactions do not require delivery of possession, but, if it be granted that they were sales, they must come within the provisions of sec. 54 of the Transfer of Property Act. That they are sales seems to us to follow from the definition given in that section and besides the section the following authorities may be cited, namely, Macnaghten's Mahomedan Law, p. 217; Suba Bibi…(Plaintiff); v. Balgobind Das…(Defendant).*(2). If then this transaction was a sale, it could only be effected either by a registered instrument or by delivery, the property being less than Rs. 100 in value.
The Court below treats the transaction as a gift and holds that it comes within the operation of sec. 129 of the Transfer of Property Act. That section lays down that nothing in the chapter of the Act which relates to gifts, shall affect any rule of Mahomedan Law. But that chapter could not in any case affect this transaction, inasmuch as it refers only to gifts without consideration, which the transaction under discussion certainly was not. The learned Subordinate Judge relies also on the decision in Mahomed Esuph Ravutan v. Pattamsa Ammal(3) in which it was held, following Khajooroonissa v. Rowshan jehan(4) that in cases of this nature transfer of seizin is not necessary. But Khajooroonissa v. Rowshan Jehan was decided long before the Transfer of Property Act, and even then it was held that in the case of a deed of gift for consideration, there must be a bonâ fide intention on the part of the donor to divest himself in praesenti of the property, and to confer it on the donee. The question whether the Transfer of Property Act was applicable was apparently not considered in Mahomed Esuph Ravutan v. Pattamsa Ammal, nor is it stated whether the deed of gift in that case was registered or not.
In our opinion the verbal transfer in favour of the 4th Plaintiff pleaded in this case was a sale, which being unregistered, could only be effected by delivery of possession. We do not think however that the learned Subordinate Judge had applied his mind to the question whether the 4th Plaintiff obtained possession as is stated in the plaint. He appears to hold that, even assuming that possession did not pass, still the so-called gift was valid. The case must accordingly be remanded for the trial of the question whether possession was delivered. If it was, this appeal will wholly fail and the Plaintiffs will be entitled to a decree. If it was not, the appeal will succeed with respect to a quarter of the property in suit. The Respondents will be entitled to three-quarters of their costs in this appeal. The costs of this appeal with respect to one quarter of the subject-matter will abide the result of the remand.
Case remanded.
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